Algonquin Books Blog

Margaret Klaw has been on the cutting edge of family law for more than twenty-five years, helping her clients navigate the legal system from prenuptial agreements to divorce to child custody. In those years, she has witnessed her field change at a dizzying pace as the definition of family has expanded.

In this excerpt from her new book, Keeping It Civil, she looks at the need for same-sex divorce:

The other day, a woman who wants a divorce called me. Which initially sounded fine, since that’s what I do. But upon further discussion, it turned out not to be fine. It turned out that I can’t get her divorced, and neither can anyone else. She’s stuck in a marriage that she and her spouse both want to end, with no feasible way out.

Sound like the eighteenth century? Or Saudi Arabia, perhaps? To the contrary, this woman suffers from a thoroughly modern problem. The problem is that her spouse is a wife, not a husband. This woman married her partner in Vermont—picture the quaint inn, the rolling green hills dotted with black-and-white cows, the wedding package so appealing to same-sex couples in that most progressive state of all—and after the wedding, they packed up and drove back home to Philly. Therein lies the problem. Pennsylvania does not recognize their marriage as valid, thanks to our state’s version of the federal Defense of Marriage Act. Not only does this law, passed by a group of homophobic legislators in Harrisburg back in 1996, prohibit same-sex marriage here, it also provides that such a marriage entered into in another state is “void in this Commonwealth.” And if Pennsylvania doesn’t recognize you as being married in the first place, its courts have no authority to divorce you.

You’d think I would just tell my would-be client to go back to Vermont to get divorced. But she can’t. Because although Vermont welcomes nonresidents into the state to marry, the opposite is true when it comes to divorce: You have to live there. And this is not unique to Vermont; it’s the case across the country. There is no state that requires residency as a prerequisite for a marriage license. You can drive to Vegas from anywhere at all and get married in the Elvis Chapel. Which is why gay and lesbian couples have flooded into Vermont and Massachusetts and New Hampshire and the rest of the states where they can legally marry—for the weekend, that is. Like Vermont, however, all states currently require that at least one spouse be a resident in order to file for divorce. While “residency” is defined differently by different states, it always means that at least one of the spouses has to live there for some defined period of time (in the case of Vermont, for six months) before a divorce complaint can be filed. I assume that the rationale behind these divorce residency requirements is that states don’t want to tie up their court systems adjudicating divorces for people who don’t actually live (or pay taxes) there.

What’s my would-be client to do? She’s stuck, unless she or her wife (a) move to a state that will recognize their marriage and (b) live there long enough to satisfy the residency requirement so they can file for divorce. And if they don’t do this and one of them wants to marry someone else? She can’t. Because she’s still married. The irony is overwhelming. Gay people are fighting so hard for marriage equality, and now, when some of those marriages don’t work out (what a surprise; they’re no different from straight people!), they also need to fight for the right to divorce.